Recommendation for conditional exemption under DDA section 55: Broadcast television captioning

I recommend that the Commission approve an application on behalf of broadcast television providers - ABC and SBS Television and networks Seven, Nine and Ten - for temporary exemption under section 55 of the Disability Discrimination Act regarding provision of captioning.

The exemption is requested for a five year period, during which the providers will implement proposals for substantial increases in captioning. The application and proposal are attached. In summary they provide for

• Captioning of all programs which commence in prime-time until their conclusion (other than sports programs).
• Staged increase in hours to reach minimum goals - 55% by end 2005 and 70% by end 2007 (based on 6am to midnight programming and compared to current figures of 38 to 40% captioned in accordance with Broadcasting Services Act requirements)
• Priority to be given to captioning of pre-school and children's programming - by end 2007, over 1400 hours of pre-school, children's and schools' programs will be captioned each year.
• Review of further possibilities to commence in 2006; and
• Support by broadcasters for actions seeking government to require caption decoders in all new television equipment and improve availability of VHS and DVD players which allow recording of close captioned television programs.

I recommend that an exemption be granted to each of the broadcasters covered by this application, for a period of 5 years, on condition in relation to each broadcaster that broadcaster implement the proposal in relation to its own services and provide support in accordance with the proposal for actions by government to improve availability of caption decoding and recording capability in television equipment (including television sets, set top boxes, video DVD and other recording equipment); that broadcasters report to the Commission by end of January 2004, 2005 and 2006 on progress in implementing the proposal; and that by end of 2006 broadcasters commence a review in consultation with deafness representative organisations of possibilities for further increases in captioning at the expiry of the exemption.

Public comment

In accordance with the Commission's policy on exemption applications, a notice of inquiry and request for submissions was issued on 11 April 2003, with submissions requested by 9 May.

Also in accordance with Commission policy, a shorter than usual period was provided for submissions since, as noted in the application, this application and the associated proposal have already been the subject of extensive discussions with disability representative organisations through a forum convened by the Commission.

Thirteen submissions were received. Three of these were from peak representative organisations for deaf and hearing impaired people and supported the application. One submission (from People with Disabilities NSW) supported granting an exemption with some modifications. Nine were from individuals opposing the application. One submission opposing the application was marked not for publication. This submission raised similar issues to those which were not so marked.

All other submissions were made available on the HREOC web site.

Submissions in favour of granting application

Submissions in support of the application were received from the Deafness Council of Western Australia, Australian Association of the Deaf and the Deafness Forum of Australia.

The Deafness Council of Western Australia provided the following comment:

The Deafness Council Western Australia was involved in negotiations with the applicants when the applicants were developing the exemption application. The Council has resolved to fully support the exemption application and considers that the proposal from the applicants will result in an acceptable overall rate of progress in captioning of free to air television. The Council is particularly appreciative of the priority given to captioning of pre-school, children's and educational programs.

The Australian Association of the Deaf commented:

It is AAD's position that free to air television should be 100% captioned and this is still our first and foremost goal. AAD intends to pursue this goal when the exemption period ends, but for the period of the exemption, AAD supports the exemption. AAD is particularly pleased and appreciative of the television networks' commitment to increasing captioning content, particularly for children's programs.

Deafness Forum of Australia commented:

Deafness Forum has appreciated the opportunity to consult with HREOC's Working Group to address the issues and develop the proposal to significantly increase closed-captioning of Free-to-Air (FTA) TV programs in Australia. The proposal, and temporary exemption application under the DDA, represents the culmination of extensive consultation between HREOC, the FTA TV broadcasting industry and Deaf and hearing impaired Australians over an extended period. Deafness Forum fully supports the proposal and temporary exemption application under the DDA, as it believes this represents the best opportunity to provide significantly more accessibility to this important communications and entertainment medium for all Deaf and hearing impaired Australians.

Submissions opposing application

Mr M. Wren's submission raises concerns that lobbying activity on captioning equipment should not be restricted to TVs, video recorders and DVD recording equipment, but should include other technologies including hard disc based recording and digital set top boxes.

Response: The reference in the applicants' proposal is to "television equipment" rather than "television sets" and in my view already covers set top boxes. It would however be appropriate to ensure that this is clear in the wording of the exemption granted, and the decision I recommend does this.

Ms M.Fay expresses concern that more rather than reduced captioning is needed including in response to the needs of an ageing population.

Response: The proposal and my recommended decision would in fact provide for increased captioning compared to current levels and would not permit or lead to any reduction in captioning presently being undertaken in compliance with the requirements of the Broadcasting Services Act in relation to prime time, news and current affairs programming.

Mr S.Swann argues that the application is an unreasonable attempt to postpone obligations to provide captioning. He indicates that 70% of programming between 6am and midnight translates to just over 50% of total programming. To the extent that increased captioning involves increased costs he argues that these will have to be faced when the exemption runs out and should thus be faced now. He also regards five years as an excessive time to increase the supply of captioners. Further, he sees the commitments made in the proposal as non-binding, noting that the proposal refers to broadcasters using their best endeavours to achieve the results stated.

This submission was also endorsed in the submission made by P.Abernethy, L.Evans, P.Phillips and R.Miller.

Mr A.Selby Smith raises similar concerns regarding financial issues and time required to train captioners.

Response: While the broadcasters do refer to using their best endeavours to achieve the results indicated in the proposal, the decision I recommend would mean they would only continue to have the benefit of the exemption if those endeavours succeed. In my view public commitments made by the broadcasters in bringing forward this application are sufficient for the Commission to rely on as the basis for granting the application.

Whether it would be feasible without unjustifiable hardship for broadcasters to achieve still higher levels of captioning within the five year period, including by reference to availability of captioners and financial considerations, could only be determined authoritatively by the courts in the context of adjudication of complaints.

While in deciding on an exemption application the Commission can take into account factors which would be relevant to a decision on unjustifiable hardship, its function in this context is not that of determining existing rights and responsibilities under the DDA but that of deciding whether it would be appropriate in all the circumstances to grant an exemption, which may vary existing rights and responsibilities.

The key test for this purpose is whether to do so will promote the objects of the DDA. In my view that test is satisfied in this case.

Granting an exemption will lead to substantial increases in captioning. The broadcasters have stated firmly that without the protection of an exemption they are not prepared to commit to these increases. By making the commitments set out in the proposal and bringing forward this application, the broadcasters are in effect forgoing their right to argue that they are not required to increase captioning to the levels indicated in the proposal or even beyond existing levels. It is relevant to note in this context that in the process leading to the proposal the broadcasters have referred to legal advice indicating that the captioning requirements of the Broadcasting Services Act displace the operation of the DDA in this area. Although I do not agree with this advice it must be conceded to be an arguable view.

This is not to argue that any increase beyond existing levels should be accepted as sufficient basis for an exemption. The Commission has to decide in each case whether it is appropriate to grant an exemption. In my view the amount of increased accessibility in this case is sufficient to justify an exemption. Although opposing views in individual submissions must be given due weight, the Commission should in my view also give due weight in this respect to the expressions of support from the representative organisations involved. In this respect it is relevant to note that the Australian Association of the Deaf support the application while maintaining their commitment to 100% captioning as a long term goal.

Ms A.Porter asks that captioning of children's programming be achieved more rapidly than proposed, noting benefits in acquisition of literacy.

Response: The proposal already gives priority to children's programming within the overall captioning targets that broadcasters have indicated they are prepared to commit to. In my view granting the exemption as proposed is likely to result in children's programming being captioned sooner than if the Commission refuses the exemption because it does not provide full captioning of children's programming as soon as is desirable.

Mr A.Lill expresses concern that an exemption will render the broadcasters unaccountable and allow them to reduce captioning. He also queries the application of the proposal only to 6am to 12 midnight programming, noting the position of shiftworkers and others who watch late night television, and calls for 100% captioning.

Response: As noted above, the requirements of the Broadcasting Services Act will continue to apply to captioning of prime time, news and current affairs programming. Also as noted above, the broadcasters will only gain the benefit of the recommended exemption under the DDA if and so long as they meet the conditions on that exemption. The exclusion of programs between midnight and 6am is clearly unfortunate for those people who can only watch or who wish to watch between those hours. Although 100% captioning is clearly desirable as a long term goal (since anything less does involve unequal access or lack of access for deaf people), if it is accepted that in the period covered by the exemption applied for less than 100% will be achieved, in my view it is more appropriate for broadcasters rather than HREOC to determine which programs captions will be applied to - since they are in a better position to judge audience demand and since this is likely to be more conducive to achieving the highest overall levels of captioning.

Mr J.Clark is an accessibility consultant based in Toronto, Canada. Having his submission available indicates some of the benefits of use of the internet to gain public comments since it is possible to draw on experience and views beyond Australia. He emphasises that less than 100% captioning involves discrimination. He criticises the priority given within the proposal to children's programming. He argues that the non-application to sports programs of the commitment to finish captioning programs which commence in prime time indicates assumptions that captioning is unnecessary for sport. He argues that limited availability of captioners should not be a constraint since it is possible to have captioning done remotely by overseas captioners. He provides information on equipment issues and criticises the failure of the proposal to apply to advertising.

Response: It is obviously true that less than 100% captioning has a discriminatory effect and that (assuming that the DDA does still apply to these issues) this will be unlawful unless unjustifiable hardship exists or unless an exemption is in effect. As indicated above, the issue for the Commission in this matter is whether granting an exemption will be appropriate as a means of reducing discrimination over time. In my view it is.

So long as there is less than 100% captioning, in my view the decision on which programs should be among those captioned is principally one for the broadcasters - just as decisions on where to deploy a limited supply of accessible buses are for transport providers, the concern for HREOC and the DDA being with getting as many accessible vehicles on the road as soon as possible rather than with which routes they operate on. There are clearly differing views on which classes of programming should have priority but in my view it would not be appropriate to reject the exemption application because of this.

Discussions leading to this proposal did not indicate any belief that captioning was inapplicable to sports. The basis of applying a commitment to finish captioning programs which commence in prime time only to programs other than sport was indicated rather to be one of resources, in that some sports programs which commence in prime time may go for many hours beyond (such as test cricket from some countries) while other programs rarely extend as long.

The failure of the proposal to apply to advertisements reflects the fact that the exemption sought similarly fails to apply to advertisers, who accordingly would remain liable to possible complaints under the DDA.

Submission supporting exemption but with modifications

People with Disability Australia urge HREOC to ensure that submissions are carefully considered rather than taking the agreement of peak organisations as concluding the matter. This is clearly the correct approach and I agree with it, while also noting that taking views in submissions properly into account does not necessarily mean adopting those views.

People with Disability Australia submit that

the Commission ought to grant the exemption on the terms sought by the broadcasters, subject to:

• The inclusion of sport, advertising, sponsorship, promotional material, and community service announcements in the proposals for increased captioning that support the application. With respect to sport programs this should include an acceptable proposal for both live to air broadcasts and replays.
• Rigorous and transparent testing of the broadcaster's assertions in relation to the availability of captioners and the costs of captioning, with a view to reducing the period, or varying the terms, of the exemption where the evidence does not support the application in the terms sought.

Response: Sports programming is not excluded from the whole proposal, but as discussed above only from the immediate commitment to caption programs beginning in prime time to their finish. Also as noted above, the proposed exemption would not prevent complaints against advertisers where advertisements are not captioned. In contrast to advertisements, captioning community service announcements and promotional material is clearly within the principal responsibility of broadcasters. However, in my view the same point applies on this issue as on other issues of priority between different classes of material: that is, if it is accepted that for the term of this exemption there is less than 100% captioning, the decision on which programs should be among those captioned is principally one for the broadcasters. This is not, of course, to decide that there should not be further increases in captioning in future and that these should not include promotional material.

Regarding the submission that broadcasters' views on costs and availability of captioners should be subject to further scrutiny with a view to including more demanding conditions on an exemption, I note again that the task before the Commission in this matter is not to determine whether the broadcasters have a good defence of unjustifiable hardship, but to decide whether it would be appropriate in all the circumstances to grant an exemption, taking into account whether to do so will promote the objects of the DDA.

Taking the issues raised by submissions into account, I recommend granting of an exemption in the terms indicated at the outset of this recommendation.

Graeme Innes

Deputy Disability Discrimination Commissioner

12 May 2003